This New Year's Eve, Know Your Rights

Posted on Dec 31, 2015 12:00am PST

As New Year’s Eve is upon us, some of us may be stopped for speeding,
or for a failure to signal, and that stop – innocent enough at the
outset – may develop into something more. All an officer has to
believe he detects is an odor of alcohol, or red, watery eyes late at
night, or some alleged lack of clarity in speaking, and/or difficulty
handing over license and registration before you potentially may be “asked”
to get out of the car and perform field sobriety “tests”.
And so, here are our top tips for the New Year (or New Year’s Eve),
if stopped by an officer:

(1) Remember, beyond license and registration, you are not obligated to
provide any information – or even to communicate with the officer
by any verbal means that you are declining to provide that information
(by that I mean, you could even provide the officer with a written card
to alert him that you will not be answering any questions, thereby depriving
him of “evidence” which he could potentially use against you
upon hearing you speak – i.e., your alleged slurred speech). During
a traffic stop which an officer aims to catapult into a DUI arrest, an
officer will typically ask you questions, during which time he is trying
to evaluate your ability to speak, to remember, to communicate, and also
to gather information such as when you last drank and how much you drank.
You are not required to provide any of this information, which will only
be used against you by the officer to try to build a case against you.
While you may think at the time that you can just explain things to the
officer and be on your way, in light of the fact that you are innocent
and only had two drinks or so, you must keep in mind that the officer
is not looking to collect information that would support your innocence,
so-called “exculpatory information”; he is only looking to
gather information that would point to your guilt. That is his job. Also,
his standard of evidence for conducting an arrest – “probable
cause” – is a much lesser standard than the level of evidence
required to prove a case against you in court.

(2) You do not have to perform any so-called field sobriety tests. While
framed as “tests”, these roadside exercises are actually open
to errors in administration and interpretation and, even when perfectly
administered by the officer, have error rates as high as 1/3. That means
that one in every three people will be falsely identified as having a
blood alcohol content of .10% or higher using these “exercises”
as measurements.

(3) You do not have to give a preliminary alcohol screening (or PAS) breath
sample, which is a pre-arrest breath test that an officer will also try
to use to get more ammunition to arrest you. The officer must inform you
that this is an optional breath test, unlike the later, required test
as to which you will be given a choice between breath and blood. The difference
between the two is that you will only reach that later test if the officer
believes he has collected enough evidence to use against you to justify
an arrest. The only things you have to do in interacting with an officer
are hand over your license and registration when stopped and then politely
tell him, if he continues on trying to get information from you, that
you decline to answer those questions. People sometimes ask me, “doesn’t
an officer have to read me my rights when he stops me?” The answer
is no, because courts have labeled the entire interaction with a law enforcement
officer which occurs when you are pulled over as a temporary “roadside
investigation”; you are not considered to be “in custody”
(although, truthfully, who would feel free to leave under these circumstances?)
and so none of the rights that accompany what is called “custodial
interrogation” are activated. However, simply because no rights
will be read to you by the officer does not mean that you are powerless
in this situation.

(4) Remember - you are in control. While you may feel nervous or distressed
- let’s just call it fear - when faced with this law enforcement
officer who seems to you to be in a superior power position, in the case
of a DUI stop, you are actually the person who is in control. Almost all
of the information that an officer can gather in your DUI case is dependent
on your willingness to acknowledge his power and to give him that information.
And so, if you are faced with such a situation on New Year’s Eve,
or any other day for that matter, know that you are not alone in being
afraid. I believe it was Yoda who said fear is the enemy, if not in those
exact words (possibly, it was “the enemy, fear is”). Fear
will lead you to say and to do things, things to your detriment, which
you otherwise would never do in any other interaction where you felt in
control. While the officer is in a position of “authority”
in this scenario, he has no real power unless you give that to him. He
cannot build a DUI case against you, in most situations, without your
participation and your consent. A case that depends only on the officer’s
alleged observations of you, coupled with some other common traffic infraction,
will be a very weak case in court. An arrest which hinges only on such
observations will, likewise, be flawed and open to legal challenge.

As you head into this new year of 2016, with all its promise and its pitfalls
(including being stopped by an officer), these tips will help you keep
that most important promise, the one you make to yourself: may you never
lose sight of the fact that you are the one in the driver’s seat.
Wishing you all good things and happy adventures on the road ahead…
call us in case of any roadblocks and we will get you through. Happy New
Year to you!